415 U.S.

250
94 S.Ct. 1076
39 L.Ed.2d 306

MEMORIAL HOSPITAL et al., Appellants,

v.
MARICOPA COUNTY et al.
No. 72847.
Argued Nov. 6, 1973.
Decided Feb. 26, 1974.

Syllabus
This is an appeal from a decision of the Arizona Supreme Court upholding
the constitutionality of an Arizona statute requiring a year's residence in a
county as a condition to an indigent's receiving nonemergency
hospitalization or medical care at the county's expense. Held: The
durational residence requirement, in violation of the Equal Protection
Clause, creates an 'invidious classification' that impinges on the right of
interstate travel by denying newcomers 'basic necessities of life.' Shapiro
v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600. Pp. 253
270.
(a) Such a requirement, since it operates to penalize indigents for
exercising their constitutional right of interstate migration, must be
justified by a compelling state interest. Shapiro v. Thompson, supra; Dunn
v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274. Pp. 253262.
(b) The State has not shown that the durational residence requirement is
'legitimately defensible' in that it furthers a compelling state interest, and
none of the purposes asserted as justification for the requirementfiscal
savings, inhibiting migration of indigents generally, deterring indigents
from taking up residence in the county solely to utilize the medical
facilities, protection of longtime residents who have contributed to the
community particularly by paying taxes, maintaining public support of the
county hospital, administrative convenience in determining bona fide
residence, prevention of fraud, and budget predictabilitysatisfies the
State's burden of justification and insures that the State, in pursuing its

asserted objectives, has chosen means that do not unnecessarily impinge

on constitutionally protected interests. Pp. 262269.
108 Ariz. 373, 498 P.2d 461, reversed and remanded.
Mary M. Schroeder, Washington, D.C., for appellants.
William J. Carter, III, Phoenix, Ariz., for appellees.
Mr. Justice MARSHALL delivered the opinion of the Court.

This case presents an appeal from a decision of the Arizona Supreme Court
upholding an Arizona statute requiring a year's residence in a county as a
condition to receiving nonemergency hospitalization or medical care at the
county's expense. The constitutional question presented is whether this
durational residence requirement is repugnant to the Equal Protection Clause as
applied by this Court in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22
L.Ed.2d 600 (1969).

* Appellant Henry Evaro is an indigent suffering from a chronic asthmatic and

bronchial illness. In early June 1971, Mr. Evaro moved from New Mexico to
Phoenix in Maricopa County, Arizona. On July 8, 1971, Evaro had a severe
respiratory attack and was sent by his attending physician to appellant
Memorial Hospital, a nonprofit private community hospital. Pursuant to the
Arizona statute governing medical care for indigents, Memorial notified the
Maricopa County Board of Supervisors that it had in its charge an indigent who
might qualify for county care and requested that Evaro be transferred to the
County's public hospital facility. In accordance with the approved procedures,
Memorial also claimed reimbursement from the County in the amount of
$1,202.60, for the care and services it had provided Evaro.

Under Arizona law, the individual county governments are charged with the
mandatory duty of providing necessary hospital and medical care for their
indigent sick.1 But the statute requires an indigent to have been a resident of the
County for the preceding 12 months in order to be eligible for free
nonemergency medical care.2 Maricopa County refused to admit Evaro to its
public hospital or to reimburse Memorial solely because Evaro had not been a
resident of the County for the preceding year. Appellees do not dispute that
Evaro is an indigent or that he is a bona fide resident of Maricopa County.3

This action was instituted to determine whether appellee Maricopa County was

obligated to provide medical care for Evaro or was liable to Memorial for the
costs it incurred because of the County's refusal to do so. This controversy
necessarily requires an adjudication of the constitutionality of the Arizona
durational residence requirement for providing free medical care to indigents.
5

The trial court held the residence requirement unconstitutional as a violation of

the Equal Protection Clause. In a prior there-judge federal court suit against
Pinal County, Arizona, the District Court had also declared the residence
requirement unconstitutional and had enjoined its future application in Pinal
County. Valenciano v. Bateman, 323 F.Supp. 600 (D.C.Ariz.1971).4
Nonetheless, the Arizona Supreme Court upheld the challenged requirement.
To resolve this conflict between a federal court and the highest court of the
State, we noted probable jurisdiction, 410 U.S. 981, 93 S.Ct. 1499, 36 L.Ed.2d
176 (1972), and we reverse the judgment of the Arizona Supreme Court.

II
6

In determining whether the challenged durational residence provision violates

the Equal Protection Clause, we must first determine what burden of
justification the classification created thereby must meet, by looking to the
nature of the classification and the individual interests affected.5 The Court
considered similar durational residence requirements for welfare assistance in
Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).
The Court observed that those requirements created two classes of needy
residents 'indistinguishable from each other except that one is composed of
residents who have resided a year or more, and the second of residents who
have resided less than a year, in the jurisdiction. On the basis of this sole
difference the first class (was) granted and second class (was) denied welfare
aid upon which may depend the ability . . . to obtain the very means to subsist
food, shelter, and other necessities of life.' Id., at 627, 89 S.Ct., at 1327. The
Court found that because this classification impinged on the constitutionally
guaranteed right of interstate travel, it was to be judged by the standard of
whether it promoted a compelling state interest.6 Finding such an interest
wanting, the Court held the challenged residence requirements unconstitutional.

Appellees argue that the residence requirement before us is distinguishable

from those in Shapiro, while appellants urge that Shapiro is controlling. We
agree with appellants that Arizona's durational residence requirement for free
medical care must be justified by a compelling state interest and that, such
interests being lacking, the requirement is unconstitutional.

III

The right of interstate travel has repeatedly been recognized as a basic

constitutional freedom.7 Whatever its ultimate scope, however, the right to
travel, was involved in only a limited sense in Shapiro. The Court was there
concerned only with the right to migrate, 'with intent to settle and abide'8 or, as
the Court put it, 'to migrate, resettle, find a new job, and start a new life.' Id., at
629, 89 S.Ct., at 1328. Even a bona fide residence requirement would burden
the right to travel, if travel meant merely movement. But, in Shapiro, the Court
explained that '(t)he residence requirement and the one-year waiting-period
requirement are distinct and independent prerequisites' for assistance and only
the latter was held to be unconstitutional. Id., at 636, 89 S.Ct., at 1332. Later, in
invalidating a durational residence requirement for voter registration on the
basis of Shapiro, we cautioned that our decision was not intended to 'cast doubt
on the validity of appropriately defined and uniformly applied bona fide
residence requirements.' Dunn v. Blumstein, 405 U.S. 330, 342 n. 13, 92 S.Ct.
995, 1003 (1972).

IV
9

The appellees argue that the instant county residence requirement is

distinguishable from the state residence requirements in Shapiro, in that the
former penalizes, not interstate, but rather intrastate, travel. Even were we to
draw a constitutional distinction between interstate and intrastate travel, a
question we do not now consider, such a distinction would not support the
judgment of the Arizona court in the case before us. Appellant Evaro has been
effectively penalized for his interstate migration, although this was
accomplished under the guise of a county residence requirement. What would
be unconstitutional if done directly by the State can no more readily be
accomplished by a county at the State's direction. The Arizona Supreme Court
could have construed the waiting-period requirement to apply to intrastate but
not interstate migrants;9 but it did not do so, and 'it is not our function to
construe a state statute contrary to the construction given it by the highest court
of a State.' O'Brien v. Skinner, 414 U.S. 524, 94 S.Ct. 740, 38 L.Ed.2d 702
(1974).

V
10

Although any durational residence requirement impinges to some extent on the

right to travel, the Court in Shapiro did not declare such a requirement to be per
se unconstitutional. The Court's holding was conditioned, 394 U.S., at 638 n.
21, 89 S.Ct., at 1333, by the caveat that some 'waiting-period or residence
requirements . . . may not be penalties upon the exercise of the constitutional
right of interstate travel.' The amount of impact required to give rise to the

compelling-state-interest test was not made clear.10 The Court spoke of the
requisite impact in two ways. First, we considered whether the waiting period
would deter migration:
11

'An indigent who desires to migrate . . . will doubtless hesitate if he knows that
he must risk making the move without the possibility of falling back on state
welfare assistance during his first year of residence, when his need may be
most acute.' Id., at 629, 89 S.Ct., at 1329.

12

Second, the Court considered the extent to which the residence requirement
served to penalize the exercise of the right to travel.

13

The appellees here argue that the denial of nonemergency medical care, unlike
the denial of welfare, is not apt to deter migration; but it is far from clear that
the challenged statute is unlikely to have any deterrent effect. A person afflicted
with a serious respiratory ailment, particularly an indigent whose efforts to
provide a living for his family have been inhibited by his incapacitating illness,
might well think of migrating to the clean dry air of Arizona, where relief from
his disease could also bring relief from unemployment and poverty. But he may
hesitate if he knows that he must make the move without the possibility of
falling back on the State for medical care should his condition still plague him
or grow more severe during his first year of residence.

14

It is true, as appellees argue, that there is no evidence in the record before us

that anyone was actually deterred from traveling by the challenged restriction.
But neither did the majority in Shapiro find any reason 'to dispute the 'evidence
that few welfare recipients have in fact been deterred (from moving) by
residence requirements.' . . . Indeed, none of the litigants had themselves been
deterred.' Dunn, 405 U.S., at 340, 92 S.Ct., at 1002 (citations omitted). An
attempt to distinguish Shapiro by urging that a durational residence requirement
for voter registration did not deter travel, was found to be a 'fundamental
misunderstanding of the law' in Dunn, supra, at 339340, 92 S.Ct. at 1001:11

15

'Shapiro did not rest upon a finding that denial of welfare actually deterred
travel. Nor have other 'right to travel' cases in this Court always relied on the
presence of actual deterrence. In Shapiro we explicitly stated that the
compelling state interest test would be triggered by 'any classification which
serves to penalize the exercise of that right (to travel) . . .." (Emphasis in
original; footnote omitted.)

16

Thus, Shapiro and Dunn stand for the proposition that a classification which

'operates to Penalize those persons . . . who have exercised their constitutional

right of interstate migration,' must be justified by a compelling state interest.
Oregon v. Mitchell, 400 U.S. 112, 238, 91 S.Ct. 260, 321, 27 L.Ed.2d 272
(1970) (separate opinion of Brennan, White, and Marshall, JJ.) (emphasis
added). Although any durational residence requirement imposes a potential cost
on migration, the Court in Shapiro cautioned that some 'waiting-period(s) . . .
may not be penalties.' 394 U.S., at 638 n. 21, 89 S.Ct., at 1333. In Dunn v.
Blumstein, supra, the Court found that the denial of the franchise, 'a
fundamental political right,' Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct.
1362, 1382, 12 L.Ed.2d 506 (1964), was a penalty requiring application of the
compelling-state-interest test. In Shapiro, the Court found denial of the basic
'necessities of life' to be a penalty. Nonetheless, the Court has declined to strike
down state statutes requiring one year of residence as a condition to lower
tuition at state institutions of higher education.12
17

Whatever the ultimate parameters of the Shapiro penalty analysis, 13 it is at least

clear that medical care is as much 'a basic necessity of life' to an indigent as
welfare assistance.14 And, governmental privileges or benefits necessary to
basic sustenance have often been viewed as being of greater constitutional
significance than less essential forms of governmental entitlements. See, e.g.,
Shapiro, supra; Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25
L.Ed.2d 287 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337, 340
342, 89 S.Ct. 1820, 18221823, 23 L.Ed.2d 349 (1969). It would be odd,
indeed, to find that the State of Arizona was required to afford Evaro welfare
assistance to keep him from discomfort of inadequate housing or the pangs of
hunger but could deny him the medical care necessary to relieve him from the
wheezing and gasping for breath that attend his illness.15

18

Nor does the fact that the durational residence requirement is inapplicable to
the provision of emergency medical care save the challenged provision from
constitutional doubt. As the Arizona Supreme Court observed, appellant 'Evaro
was an indigent person who required continued medical care for the
preservation of his health and well being . . .,' even if he did not require
immediate emergency care.16 The State could not deny Evaro care just because,
although gasping for breath, he was not in immediate danger of stopping
breathing altogether. To allow a serious illness to go untreated until it requires
emergency hospitalization is to subject the sufferer to the danger of a
substantial and irrevocable deterioriation in his health. Cancer, heart disease, or
respiratory illness, if untreated for a year, may become all but irreversible paths
to pain, disability, and even loss of life. The denial of medical care is all the
more cruel in this context, falling as it does on indigents who are often without
the means to obtain alternative treatment.17

19

Finally, appellees seek to distinguish Shapiro as involving a partially federally

funded program. Maricopa County has received federal funding for its public
hospital18 but, more importantly, this Court has held that whether or not a
welfare program is federally funded is irrelevant to the applicability of the
Shapiro analysis Pease v. Hansen, 404 U.S. 70, 92 S.Ct. 318, 30 L.Ed.2d 224
(1971); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534
(1971).

20

Not unlike the admonition of the Bible that, 'Ye shall have one manner of law,
as well for the stranger, as for one of your own country,' Leviticus 24:22 (King
James Version), the right of interstate travel must be seen as insuring new
residents the same right to vital government benefits and privileges in the States
to which they migrate as are enjoyed by other residents. The State of Arizona's
durational residence requirement for free medical care penalizes indigents for
exercising their right to migrate to and settle in that State.19 Accordingly, the
classification created by the residence requirement, 'unless shown to be
necessary to promote a compelling governmental interest, is unconstitutional.'
Shapiro, 394 U.S. at 634, 89 S.Ct., at 1331. (Emphasis in original.)

VI
21

We turn now to the question of whether the State has shown that its durational
residence requirement is 'legitimately defensible,'20 in that it furthers a
compelling state interest.21 A number of purposes are asserted to be served by
the requirement and we must determine whether these satisfy the appellees'
heavy burden of justification, and insure that the State, in pursuing its asserted
objectives, has chosen means that do not unnecessarily burden constitutionally
protected interests. NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9
L.Ed.2d 405 (1963).

The Arizona Supreme Court observed:

22

'Absent a residence requirement, any indigent sick person . . . could seek

admission to (Maricopa County's) hospital, the facilities being the newest and
most modern in the state, and the resultant volume would cause long waiting
periods or severe hardship on (the) county if it tried to tax its property owners
to support (these) indigent sick . . ..' 108 Ariz. 373, 376, 498 P.2d 461, 464.

23

The County thus attempts to sustain the requirement as a necessary means to

insure the fiscal integrity of its free medical care program by discouraging an
influx of indigents, particularly those entering the County for the sole purpose
of obtaining the benefits of its hospital facilities.

24

First, a State may not protect the public fisc by drawing an invidious distinction
between classes of its citizens, Shapiro, supra, 394 U.S., at 633, 89 S.Ct., at
1330, so appellees must do more than show that denying free medical care to
new residents saves money. The conservation of the taxpayers' purse is simply
not a sufficient state interest to sustain a durational residence requirement
which, in effect, severely penalizes exercise of the right to freely migrate and
settle in another State. See Rivera v. Dunn, 329 F.Supp. 554 (D.C.Conn.1971),
aff'd, 404 U.S. 1054, 92 S.Ct. 742, 30 L.Ed.2d 743 (1972).

25

Second, to the extent the purpose of the requirement is to inhibit the

immigration of indigents generally, that goal is constitutionally
impermissible.22 And, to the extent the purpose is to deter only those indigents
who take up residence in the County solely to utilize its new and modern public
medical facilities, the requirement at issue is clearly overinclusive. The
challenged durational residence requirement treats every indigent, in his first
year of residence, as if he came to the jurisdiction solely to obtain free medical
care. Such a classification is no more defensible than the waiting period in
Shapiro, supra, of which the Court said:

26

'(T)he class of barred newcomers is all-inclusive, lumping the great majority

who come to the State for other purposes with those who come for the sole
purpose of collecting higher benefits.' 394 U.S., at 631, 89 S.Ct., at 1330.

27

Moreover, 'a State may no more try to fence out those indigents who seek
(better public medical facilities) than it may try to fence out indigents
generally.' Ibid. An indigent who considers the quality of public hospital
facilities in entering the State is no less deserving than one who moves into the
State in order to take advantage of its better educational facilities. Id., at 631
632, 89 S.Ct., at 13291330.

28

It is also useful to look at the other side of the coinat who will bear the cost
of indigents' illnesses if the County does not provide needed treatment. For
those newly arrived residents who do receive at least hospital care, the cost is
often borne by private nonprofit hospitals, like appellant Memorialmany of
which are already in precarious financial straits.23 When absorbed by private
hospitals, the costs of caring for indigents must be passed on to paying patients
and 'at a rather inconvenient time' adding to the already astronomical costs of
hospitalization which bear so heavily on the resources of most Americans.24
The financial pressures under which private nonprofit hospitals operate have
already led many of them to turn away patients who cannot pay or to severely
limit the number of indigents they will admit.25 And, for those indigents who
receive no care, the cost is, of course, measured by their own suffering.

29

In addition, the County's claimed fiscal savings may well be illusory. The lack
of timely medical care could cause a patient's condition to deteriorate to a point
where more expensive emergency hospitalization (for which no durational
residence requirement applies) is needed. And, the disability that may result
from letting an untreated condition deteriorate may well result in the patient
and his family becoming a burden on the State's welfare rolls for the duration of
his emergency care, or permanently, if his capacity to work is impaired.26

30

The appellees also argue that eliminating the durational residence requirement
would dilute the quality of services provided to longtime residents by fostering
an influx of newcomers and thus requiring the County's limited public health
resouces to serve an expanded pool of recipients. Appellees assert that the
County should be able to protect its longtime residents because of their
contributions to the community, particularly through the past payment of taxes.
We rejected this 'contributory' rationale both in Shapiro and in Vlandis v. Kline,
412 U.S. 441, 450 n. 6, 93 S.Ct. 2230, 2235, 37 L.Ed.2d 63 (1973), by
observing:

31

'(Such) reasoning would logically permit the State to bar new residents from
schools, parks and libraries or deprive them of police and fire protection.
Indeed it would permit the State to apportion all benefits and services according
to the past tax contributions of its citizens. The Equal Protection Clause
prohibits such an apportionment of state services.' Shapiro, 394 U.S., at 632
633, 89 S.Ct., at 1330 (footnote omitted).

32

Appellees express a concern that the threat of an influx of indigents would

discourage 'the development of modern and effective (public medical)
facilities.' It is suggested that whether or not the durational residence
requirement actually deters migration, the voters think that it protects them
from low income families' being attracted by the county hospital; hence, the
requirement is necessary for public support of that medical facility. A State
may not employ an invidious discrimination to sustain the political viability of
its programs. As we observed in Shapiro, supra, at 641, 89 S.Ct., at 1335,
'(p)erhaps Congress could induce wider state participation in school
construction if it authorized the use of joint funds for the building of segregated
schools,' but that purpose would not sustain such a scheme. See also Cole v.
Housing Authority of City of Newport, 435 F.2d 807, 812813 (CA1 1970).

B
33

The appellees also argue that the challenged statute serves some administrative
objectives. They claim that the one-year waiting period is a convenient rule of

thumb to determine bona fide residence. Besides not being factually defensible,
this test is certainly overbroad to accomplish its avowed purpose. A mere
residence requirement would accomplish the objective of limiting the use of
public medical facilities to bona fide residents of the County without sweeping
within its prohibitions those bona fide residents who had moved into the State
within the qualifying period. Less drastic means, which do not impinge on the
right of interstate travel, are available and employed27 to ascertain an
individual's true intentions, without exacting a protracted waiting period which
may have dire economic and health consequences for certain citizens. See
Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960).
The Arizona State welfare agency applies criteria other than the duration of
residency to determine whether an applicant is a bona fide resident.28 The
Arizona Medical Assistance to the Aged law provides public medical care for
certain senior citizens, conditioned only on residence.29 Pinal County, Arizona,
has operated its public hospital without benefit of the durational residence
requirement since the application of the challenged statute in that County was
enjoined by a federal court in Valenciano v. Bateman, 323 F.Supp. 600
(D.C.Ariz.1971).30
34

The appellees allege that the waiting period is a useful tool for preventing
fraud. Certainly, a State has a valid interest in preventing fraud by any applicant
for medical care, whether a newcomer or old-time resident, Shapiro, 394 U.S.,
at 637, 89 S.Ct., at 1333, but the challenged provision is ill-suited to that
purpose. An indigent applicant, intent on committing fraud, could as easily
swear to having been a resident of the county for the preceding year as to being
one currently. And, there is no need for the State to rely on the durational
requirement as a safeguard against fraud when other mechanisms to serve that
purpose are available which would have a less drastic impact on
constitutionally protected interests. NAACP v. Button, 371 U.S., at 438, 83
S.Ct., at 340. For example, state law makes it a crime to file an 'untrue
statement . . . for the purpose of obtaining hospitalization, medical care or
outpatient relief' at county expense. Ariz.Rev.Stat.Ann. 11297C
(Supp.19731974). See Dunn, 405 U.S., at 353354, 92 S.Ct., at 1008
1009; U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821,
2825, 37 L.Ed.2d 782 (1973).

35

Finally, appellees assert that the waiting period is necessary for budget
predictability, but what was said in Shapiro is equally applicable to the case
before us:

36

'The records . . . are utterly devoid of evidence that (the County) uses the oneyear requirement as a means to predict the number of people who will require

assistance in the budget year. (The appellees do not take) a census of new
residents . . .. Nor are new residents required to give advance notice of their
need for . . . assistance. Thus, the . . . authorities cannot know how many new
residents come into the jurisdiction in any year, much less how many of them
will require public assistance.' 394 U.S., at 634635, 89 S.Ct., at 1331
(footnote omitted).
37

Whatever the difficulties in projecting how many newcomers to a jurisdiction

will require welfare assistance, it could only be an even more difficult and
speculative task to estimate how many of those indigent newcomers will
require medical care during their first year in the jurisdiction. The irrelevance
of the one-year residence requirement to budgetary planning is further
underscored by the fact that emergency medical care for all newcomers and
more complete medical care for the aged are cuttently being provided at public
expense regardless of whether the patient has been a resident of the County for
the preceding year. See Shapiro, supra, at 635, 89 S.Ct., at 13311332.

VII
38

The Arizona durational residence requirement for eligibility for nonemergency

free medical care creates an 'invidious classification' that impinges on the right
of interstate travel by denying newcomers 'basic necessities of life.' Such a
classification can only be sustained on a showing of a compelling state interest.
Appellees have not met their heavy burden of justification, or demonstrated that
the State, in pursuing legitimate objectives, has chosen means which do not
unnecessarily impinge on constitutionally protected interests. Accordingly, the
judgment of the Supreme Court of Arizona is reversed and the case remanded
for further action not inconsistent with this opinion.

39

So ordered.

40

Reversed and remanded.

41

THE CHIEF JUSTICE and Mr. Justice BLACKMUN concur in the result.

42

Mr. Justice DOUGLAS.

43

The legal and economic aspects of medical care1 are enormous; and I doubt if
decisions under the Equal Protection Clause of the Fourteenth Amendment are
equal to the task of dealing with these matters. So far as interstate travel per se
is considered, I share the doubts of my Brother REHNQUIST. The present

case, however, turns for me on a different axis. The problem has many aspects.
The therapy of Arizona's atmosphere brings many there who suffer from
asthma, bronchitis, arthritis, and tuberculosis. Many coming are indigent or
become indigent after arrival. Arizona does not deny medical help to
'emergency' cases 'when immediate hospitalization or medical care is necessary
for the preservation of life or limb,' Ariz.Rev.Stat.Ann. 11297(A)
(Supp.19731974). For others, it requires a 12month durational residence.
44

The Act is not aimed at interstate travelers; it applies even to a long-term

resident who moves from one county to another. As stated by the Supreme
Court of Arizona in the present case: 'The requirement applies to all citizens
within the state including long term residents of one county who move to
another county. Thus, the classification does not single out non-residents nor
attempt to penalize interstate travel. The requirement is uniformly applied.' 108
Ariz. 373, 375, 498 P.2d 461, 463.

45

What Arizona has done, therefore, is to fence the poor out of the metropolitan
counties, such as Maricopa County (Phoenix) and Pima County (Tucson) by use
of a durational residence requirement. We are told that eight Arizona counties
have no county hospitals and that most indigent care in those areas exists only
on a contract basis. In San Antonio Independent School Dist. v. Rodriguez, 411
U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16, we had a case where Texas created a
scheme by which school districts with a low property tax base, from which they
could raise only meager funds, offered a lower quality of education to their
students than the wealthier districts. That system was upheld against the charge
that the state system violated the Equal Protection Clause. It was a closely
divided Court and I was in dissent. I suppose that if a State can fence in the
poor in educational programs, it can do so in medical programs. But to allow
Arizona freedom to carry forward its medical program we must go one step
beyond the San Antonio case. In the latter there was no legal barrier to
movement into a better district. Here a one-year barrier to medical care, save
for 'emergency' care, is erected around the areas that have medical facilities for
the poor.

46

Congress has struggled with the problem. In the Kerr-Mills Act of 1960, 74
Stat. 987, 42 U.S.C. 302(b)(2), it added provisions to the Social Security Act
requiring the Secretary of Health, Education, and Welfare to disapprove any
state plan for medical assistance to the aged (Medicaid) that excludes 'any
individual who resides in the state,' thus eliminating durational residence
requirements.

47

Maricopa County has received over $2 million in federal funds for hospital

47

construction under the Hill-Burton Act, 42 U.S.C. 291 et seq. Section 291c(e)
authorizes the issuance of regulations governing the operation of Hill-Burton
facilities. The regulations contain conditions that the facility to be constructed
or modernized with the funds 'will be made available to all persons residing in
the territorial area of the applicant' and that the applicant will render 'a
reasonable volume of services to persons unable to pay therefor.'2 The
conditions of free services for indigents, however, may be waived if 'not
feasible from a financial viewpoint.'

48

Prior to the application the state agency must obtain from the applicant an
assurance 'that there will be made available in the facility or portion thereof to
be constructed or modernized a reasonable volume of services to persons unable
to pay therefor. The requirement of an assurance from an applicant shall be
waived if the applicant demonstrates to the satisfaction of the State agency,
subject to subsequent approval by the Secretary, that such a requirement is not
feasible from a financial viewpoint.' 42 CFR 53.111(c)(1).3

49

So far as I can ascertain, the durational residence requirement imposed by

Maricopa County has not been federally approved as a condition to the receipt
of Hill-Burton funds.

50

Maricopa County does argue that it is not financially feasible to provide free
nonemergency medical care to new residents. Even so, the federal regulatory
framework does not leave the County uncontrolled in determining which
indigents will receive the benefit of the resources which are available. It is
clear, for example, that the County could not limit such service to whites out of
a professed inability to service indigents of all races because 42 CFR
53.112(c) prohibits such discrimination in the operation of Hill-Burton
facilities. It does not allow racial discrimination even against transients.

51

Moreover, Hill-Burton Act donees are guided by 42 CFR 53.111(g), which

sets out in some detail the criteria which must be used in identifying persons
unable to pay for such services. The criteria include the patient's health and
medical insurance coverage, personal and family income, financial obligations
and resources, and 'similar factors.' Maricopa County, pursuant to the state law
here challenged, employs length of county residence as an additional criterion
in identifying indigent recipients of uncompensated nonemergency medical
care. The federal regulations, however, do not seem to recognize that as an
acceptable criterion.

52

And, as we held in Thorpe v. Housing Authority, 393 U.S. 268, 89 S.Ct. 518,

21 L.Ed.2d 474; Mourning v. Family Publications Service, 411 U.S. 356, 93

S.Ct. 1652, 36 L.Ed.2d 318, these federal conditions attached to federal grants
are valid when 'reasonably related to the purposes of the enabling legislation.'
393 U.S., at 280281, 89 S.Ct., at 525.
53

It is difficult to impute to Congress approval of the durational residence

requirement, for the implications of such a decision would involve weighty
equal protection considerations by which the Federal Government, Bolling v.
Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, as well as the States, are
bound.

54

The political processes4 rather than equal protection litigation are the ultimate
solution of the present problem. But in the setting of this case the invidious
discrimination against the poor, Harper v. Virginia Board of Elections, 383 U.S.
663, 86 S.Ct. 1079, 16 L.Ed.2d 169, not the right to travel interstate, is in my
view the critical issue.

APPENDIX TO OPINION OF DOUGLAS, J.

Gourmand and FoodA Fable 5
55

The people of Gourmand loved good food. They ate in good restaurants,
donated money for cooking research, and instructed their government to
safeguard all matters having to do with food. Long ago, the food industry had
been in total chaos. There were many restaurants, some very small. Anyone
could call himself a chef or open a restaurant. In choosing a restaurant, one
could never be sure that the meal would be good. A commission of
distinguished chefs studied the situation and recommended that no one be
allowed to touch food except for qualified chefs. 'Food is too important to be
left to amateurs,' they said. Qualified chefs were licensed by the state with
severe penalties for anyone else who engaged in cooking. Certain exceptions
were made for food preparation in the home, but a person could serve only his
own family. Furthermore, to become a qualified chef, a man had to complete at
least twenty-one years of training (including four years of college, four years of
cooking school, and one year of apprenticeship). All cooking schools had to be
first class.

56

These reforms did succeed in raising the quality of cooking. But a restaurant
meal became substantially more expensive. A second commission observed
that not everyone could afford to eat out. 'No one,' they said, 'should be denied
a good meal because of his income.' Furthermore, they argued that chefs should
work toward the goal of giving everyone 'complete physical and psychological

satisfaction.' For those people who could not afford to eat out, the government
declared that they should be allowed to do so as often as they liked and the
government would pay. For others, it was recommended that they organize
themselves in groups an pay part of their income into a pool that would
undertake to pay the costs incurred by members in dining out. To insure the
greatest satisfaction, the groups were set up so that a member could eat out
anywhere and as often as he liked, could have as elaborate a meal as he desired,
and would have to pay nothing or only a small percentage of the cost. The cost
of joining such prepaid dining clubs rose sharply.
57

Long ago, most restaurants would have one chef to prepare the food. A few
restaurants were more elaborate, with chefs specializing in roasting, fish,
salads, sauces, and many other things. People rarely went to these elaborate
restaurants since they were so expensive. With the establishment of prepaid
dining clubs, everyone wanted to eat at these fancy restaurants. At the same
time, young chefs in school disdained going to cook in a small restaurant where
they would have to cook everything. The pay was higher and it was much more
prestigious to specialize and cook at a really fancy restaurant. Soon there were
not enough chefs to keep the small restaurants open.

58

With prepaid clubs and free meals for the poor, many people started eating
their three-course meals at the elaborate restaurants. Then they began to
increase the number of courses, directing the chef to 'serve the best with no
thought for the bill.' (Recently a 317-course meal was served.)

59

The costs of eating out rose faster and faster. A new government commission
reported as follows: (1) Noting that licensed chefs were being used to peel
potatoes and wash lettuce, the commission recommended that these tasks be
handed over to licensed dishwashers (whose three years of dishwashing training
included cooking courses) or to some new category of personnel. (2)
Concluding that many licensed chefs were overworked, the commission
recommended that cooking schools be expanded, that the length of training be
shortened, and that applicants with lesser qualifications be admitted. (3) The
commission also observed that chefs were unhappy because people seemed to
be more concerned about the decor and service than about the food. (In a recent
taste test, not only could one patron not tell the difference between a 1930 and a
1970 vintage but he also could not distinguish between white and red wines. He
explained that he always ordered the 1930 vintage because he knew that only a
really good restaurant would stock such an expensive wine.)

60

The commission agreed that weighty problems faced the nation. They
recommended that a national prepayment group be established which everyone

must join. They recommended that chefs continue to be paid on the basis of the
number of dishes they prepared. They recommended that every Gourmandese
be given the right to eat anywhere he chose and as elaborately as he chose and
pay nothing.
61

These recommendations were adopted. Large numbers of people spent all of

their time ordering incredibly elaborate meals. Kitchens became marvels of
new, expensive equipment. All those who were not consuming restaurant food
were in the kitchen preparing it. Since no one in Gourmand did anything except
prepare or eat meals, the country collapsed.

62

Mr. Justice REHNQUIST, dissenting.

63

* The State of Arizona provides free medical care for indigents. Confronted, in
common with its 49 sister States, with the assault of spiraling health and
welfare costs upon limited state resources, it has felt bound to require that
recipients meet three standards of eligibility.1 First, they must be indigent,
unemployable, or unable to provide their own care. Second, they must be
residents of the county in which they seek aid. Third, they must have
maintained their residence for a period of one year. These standards, however,
apply only to persons seeking nonemergency aid. An exception is specifically
provided for 'emergency cases when immediate hospitalization or medical care
is necessary for the preservation of life or limb . . ..'

64

Appellant Evaro moved from New Mexico to Arizona in June 1971, suffering
from a 'chronic asthmatic and bronchial illness.' In July 1971 he experienced a
respiratory attack, and obtained treatment at the facilities of appellant Memorial
Hospital, a privately operated institution. The hospital sought to recover its
expenses from appellee Maricopa County under the provisions of
Ariz.Rev.Stat.Ann. 11297A (Supp. 19731974), asserting that Evaro was
entitled to receive county care. Since he did not satisfy the eligibility
requirements discussed above,2 appellee declined to assume responsibility for
his care, and this suit was then instituted in the State Superior Court.

65

Appellants did not, and could not, claim that there is a constitutional right to
nonemergency medical care at state or county expense or a constitutional right
to reimbursement for care extended by a private hospital.3 They asserted,
however, that the state legislature, having decided to give free care to certain
classes of persons, must give that care to Evaro as well. The Court upholds that
claim, holding that the Arizona eligibility requirements burdened Evaro's 'right
to travel.'

66

Unlike many traditional government services, such as police or fire protection,

the provision of health care has commonly been undertaken by private facilities
and personnel. But as strains on private services become greater, and the costs
of obtaining care increase, federal, state, and local governments have been
pressed to assume a larger role. Reasonably enough, it seems to me, those
governments which now find themselves in the hospital business seek to
operate that business primarily for those persons dependent on the financing
locality both by association and by need.

67

Appellants in this case nevertheless argue that the State's efforts, admirable
though they may be, are simply not impressive enough. But others excluded by
eligibility requirements certainly could make similar protests. Maricopa County
residents of many years, paying taxes to both construct and support public
hospital facilities, may be ineligible for care because their incomes are slightly
above the marginal level for inclusion. These people have been excluded by the
State, not because their claim on limited public resources is without merit, but
because it has been deemed less meritorious than the claims of those in even
greater need. Given a finite amount of resources, Arizona after today's decision
may well conclude that its indigency threshold should be elevated since its
counties must provide for out-of-state migrants as well as for residents of
longer standing. These more stringent need requirements would then deny care
to additional persons who until now would have qualified for aid.

68

Those presently excluded because marginally above the State's indigency

standards, those who may be excluded in the future because of more stringent
indigency requirements necessitated by today's decision, and appellant Evaro,
all have a plausible claim to government-supported medical care. The choice
between them uncessitated by a finite amount of resources is a classic example
of the determination of priorities to be accorded conflicting claims, and would
in the recent past have been thought to be a matter particularly within the
competence of the state legislature to decide. As this Court stated in Dandridge
v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 1163, 25 L.Ed.2d 491 (1970),
'the Constitution does not empower this Court to second-guess state officials
charged with the difficult responsibility of allocating limited public welfare
funds among the myriad of potential recipients.'

69

The Court holds, however, that the State was barred from making the choice it
made because of the burden its choice placed upon Evaro's 'right to travel.'
Although the Court's definition of this 'right' is hardly precise, the Court does
state: '(T)he right of interstate travel must be seen as insuring new residents the
same right to vital government benefits and privileges in the States to which
they migrate as are enjoyed by other residents.' This rationale merits further

attention.
II
70

The right to travel throughout the Nation has been recognized for over a century
in the decisions of this Court.4 See Crandall v. Nevada, 6 Wall. 35, 18 L.Ed.
744 (1868). But the concept of that right has not been static. To see how distant
a cousin the right to travel enunciated in this case is to the right declared by the
Court in Crandall, reference need only be made to the language of Mr. Justice
Miller, speaking for the Court:

71

'But if the government has these rights on her own account, the citizen also has
correlative rights. He has the right to come to the seat of government to assert
any claim he may have upon that government, or to transact any business he
may have with it. To seek its protection, to share its offices, to engage in
administering its functions. He has a right to free access to its sea-ports,
through which all the operations of foreign trade and commerce are conducted,
to the sub-treasuries, the land offices, the revenue offices, and the courts of
justice in the several States, and this right is in its nature independent of the will
of any State over whose soil he must pass in the exercise of it.' Id., at 44.

72

The Court in Crandall established no right to free benefits from every State
through which the traveler might pass, but more modestly held that the State
could not use its taxing power to impede travel across its borders.5

73

Later cases also defined this right to travel quite conservatively. For example, in
Williams v. Fears, 179 U.S. 270, 21 S.Ct. 128, 45 L.Ed. 186 (1900), the Court
upheld a Georgia statute taxing 'emigrant agents'persons hiring labor for
work outside the Statealthough agents hiring for local work went untaxed.
The Court recognized that a right to travel existed, stating:

74

'Undoubtedly the right of locomotion, the right to remove from one place to
another according to inclination, is an attribute of personal liberty, and the right,
ordinarily, of free transit from or through the territory of any state is a right
secured by the 14th Amendment and by other provisions of the Constitution.'
Id., at 274, 21 S.Ct., at 129.

75

The Court went on, however, to decide that the statute, despite the added cost it
assessed against exported labor, affected freedom of egress 'only incidentally
and remotely.' Ibid.6

76

The leading earlier case, Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86
L.Ed. 119 (1941), provides equally little support for the Court's expansive
holding here. In Edwards the Court invalidated a California statute which
subjected to criminal penalties any person 'that brings or assists in bringing into
the State any indigent person who is not a resident of the State, knowing him to
be an indigent person.' Id., at 171, 62 S.Ct., at 166. Five members of the Court
found the statute unconstitutional under the Commerce Clause, finding in the
Clause a 'prohibition against attempts on the part of any single State to isolate
itself from difficulties common to all of them by restraining the transportation
of persons and property across its borders.' Id., at 173, 62 S.Ct., at 167. Four
concurring Justices found a better justification for the result in the Fourteenth
Amendment's protection of the 'privileges of national citizenship.'7

77

Regardless of the right's precise source and definition, it is clear that the statute
invalidated in Edwards was specifically designed to, and would, deter indigent
persons from entering the State of California. The imposition of criminal
penalties on all persons assisting the entry of an indigent served to block
ingress as surely as if the State had posted guards at the border to turn indigents
away. It made no difference to the operation of the statute that the indigent,
once inside the State, would be supported by federal payments.8 Furthermore,
the statute did not require that the indigent intend to take up continuous
residence within the State. The statute was not therefore an incidental or remote
barrier to migration, but was in fact an effective and purposeful attempt to
insulate the State from indigents.

78

The statute in the present case raises no comparable barrier. Admittedly, some
indigent persons desiring to reside in Arizona may choose to weigh the possible
detriment of providing their own nonemergency health care during the first
year of their residence against the total benefits to be gained from continuing
location within the State, but their mere entry into the State does not invoke
criminal penalties. To the contrary, indigents are free to live within the State, to
receive welfare benefits necessary for food and shelter, 9 and to receive free
emergency medical care if needed. Furthermore, once the indigent has settled
within a county for a year, he becomes eligible for full medical care at county
expense. To say, therefore, that Arizona's treatment of indigents compares with
California's treatment during the 1930's would border on the frivolous.

79

Since those older cases discussing the right to travel are unhelpful to Evaro's
cause here, reliance must be placed elsewhere. A careful reading of the Court's
opinion discloses that the decision rests almost entirely on two cases of recent
vintage: Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600

(1969), and Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274
(1972). In Shapiro the Court struck down statutes requiring one year's residence
prior to receiving welfare benefits. In Dunn the Court struck down a statute
requiring a year's residence before receiving the right to vote. In placing
reliance on these two cases, the Court must necessarily distinguish or discredit
recent cases of this Court upholding statutes requiring a year's residence for
lower in-state tuition.10 The important question for this purpose, according to
the Court's analysis, is whether a classification "operates to penalize those
persons . . . who have exercised their constitutional right of interstate
migration." (Emphasis in Court's opinion.)
80

Since the Court concedes that 'some 'waiting-period(s) . . . may not be

penalties," (ante, at 258259) one would expect to learn from the opinion how
to distinguish a waiting period which is a penalty from one which is not. Any
expense imposed on citizens crossing state lines but not imposed on those
staying put could theoretically be deemed a penalty on travel; the toll exacted
from persons crossing from Delaware to New Jersey by the Delaware Memorial
Bridge is a 'penalty' on interstate travel in the most literal sense of all. But such
charges,11 as well as other fees for use of transportation facilities such as taxes
on airport users,12 have been upheld by this Court against attacks based upon
the right to travel. It seems to me that the line to be derived from our prior cases
is that some financial impositions on interstate travelers have such indirect or
inconsequential impact on travel that they simply do not constitute the type of
direct purposeful barriers struck down in Edwards and Shapiro. Where the
impact is that remote, a State can reasonably require that the citizen bear some
proportion of the State's cost in its facilities. I would think that this standard is
not only supported by this Court's decisions, but would be eminently sensible
and workable. But the Court not only rejects this approach, it leaves us entirely
without guidance as to the proper standard to be applied.

81

The Court instead resorts to ipse dixit, declaring rather than demonstrating that
the right to nonemergency medical care is within the class of rights protected
by Shapiro and Dunn:

82

'Whatever the ultimate parameters of the Shapiro penalty analysis, it is at least

clear that medical care is as much 'a basic necessity of life' to an indigent as
welfare assistance. And, governmental privileges or benefits necessary to basic
sustenance have often been viewed as being of greater constitutional
significance than less essential forms of governmental entitlements. See, e.g.,
Shapiro, supra; Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25
L.Ed.2d 287 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337, 340
342, 89 S.Ct. 1820, 18221823, 23 L.Ed.2d 349 (1969).' Ante, at 259.

(Emphasis added; footnotes omitted.)

83

However clear this conclusion may be to the majority, it is certainly not clear to
me. The solicitude which the Court has shown in cases involving the right to
vote, 13 and the virtual denial of entry inherent in denial of welfare benefits
'the very means by which to live,' Goldberg v. Kelly, 397 U.S. 254, 264, 90
S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970)ought not be so casually extended to
the alleged deprivation here. Rather, the Court should examine, as it has done
in the past, whether the challenged requirement erects a real and purposeful
barrier to movement, or the threat of such a barrier, or whether the effects on
travel, viewed realistically, are merely incidental and remote. As the above
discussion has shown, the barrier here is hardly a counterpart to the barriers
condemned in earlier cases. That being so, the Court should observe its
traditional respect for the State's allocation of its limited financial resources
rather than unjustifiably imposing its own preferences.

III
84

The Court, in its examination of the proffered state interests, categorically

rejects the contention that those who have resided in the county for a fixed
period of time may have a greater stake in community facilities than the newly
arrived. But this rejection is accomplished more by fiat than by reason. One of
the principal factual distinctions between Starns v. Malkerson, 326 F.Supp. 234
(D.C.Minn.1970), aff'd, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971),
and Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973), both
of which upheld durational residence requirement for in-state university
tuition,14 and Shapiro, which struck them down for welfare recipients, is the
nature of the aid which the State or county provides. Welfare benefits, whether
in cash or in kind, are commonly funded from current tax revenues, which may
well be supported by the very newest arrival as well as by the longtime
resident. But universities and hospitals, although demanding operating support
from current revenues, require extensive capital facilities which cannot possibly
be funded out of current tax revenues. Thus, entirely apart from the majority's
conception of whether nonemergency health care is more or less important than
continued education, the interest of longer established residents in capital
facilities and their greater financial contribution to the construction of such
facilities seems indisputable.15

85

Other interests advanced by the State to support its statutory eligibility criteria
are also rejected virtually out of hand by the Court. The protection of the
county economies is dismissed with the statement that '(t)he conservation of the
taxpayers' purse is simply not a sufficient state interest . . ..'16 The Court points

out that the cost of care, if not borne by the Government, may be borne by
private hospitals such as appellant Memorial Hospital. While this observation is
doubtless true in large part, and is bound to present a problem to any private
hospital, it does not seem to me that it thus becomes a constitutional
determinant. The Court also observes that the State may in fact save money by
providing nonemergency medical care rather than waiting for deterioration of
an illness. However valuable a qualified cost analysis might be to legislators
drafting eligibility requirements, and however little this speculation may bear
on Evaro's condition (which the record does not indicate to have been a
deteriorating illness), this sort of judgment has traditionally been confided to
legislatures, rather than to courts charged with determining constitutional
questions.
86

The Court likewise rejects all arguments based on administrative objectives.

Refusing to accept the assertion that a one-year waiting period is a 'convenient
rule of thumb to determine bona fide residence,' the majority simply suggests
its own alternatives. Similar analysis is applied in rejecting the appellees'
argument based on the potential for fraud. The Court's declaration that an
indigent applicant 'intent on committing fraud, could as easily swear to having
been a resident of the county for the preceding year as to being one currently'
ignores the obvious fact that fabricating presence in the State for a year is
surely more difficult than fabricating only a present intention to remain.

87

The legal question in this case is simply whether the State of Arizona has acted
arbitrarily in determining that access to local hospital facilities for
nonemergency medical care should be denied to persons until they have
established residence for one year. The impediment which this quite rational
determination has placed on appellant Evaro's 'right to travel' is so remote as to
be negligible: so far as the record indicates Evaro moved from New Mexico to
Arizona three years ago and has remained ever since. The eligibility
requirement has not the slightest resemblance to the actual barriers to the right
of free ingress and egress protected by the Constitution, and struck down in
cases such as Crandall and Edwards. And, unlike Shapiro, it does not involve
an urgent need for the necessities of life or a benefit funded from current
revenues to which the claimant may well have contributed. It is a substantial
broadening of, and departure from, all of these holdings, all the more
remarkable for the lack of explanation which accompanies the result. Since I
can subscribe neither to the method nor the result, I dissent.

Ariz.Rev.Stat.Ann. 11291 (Supp.19731974).

Section 11297A (Supp.19731974) provides in relevant part that:

'Except in emergency cases when immediate hospitalization or medical care is
necessary for the preservation of life or limb no person shall be provided
hospitalization, medical care or outpatient relief under the provisions of this
article without first filing with a member of the board of supervisors of the
county in which he resides a statement in writing, subscribed and sworn to
under oath, that he is an indigent as shall be defined by rules and regulations of
the state department of economic security, an unemployable totally dependent
upon the state or county government for financial support, or an employable of
sworn low income without sufficient funds to provide himself necessary
hospitalization and medical care, and that he has been a resident of the county
for the preceding twelve months.' (Emphasis added.)

Thus, the question of the rights of transients to medical care is not presented by
this case.

Arizona's intermediate appellate court had also declared the durational

residence requirement unconstitutional in Board of Supervisors, Pima County v.
Robinson, 10 Ariz.App. 238, 457 P.2d 951 (1969), but its decision was vacated
as moot by the Arizona Supreme Court. 105 Ariz. 280, 463 P.2d 536 (1970).
An Arizona one-year durational residence requirement for care at state mental
health facilities was declared unconstitutional in Vaughan v. Bower, 313
F.Supp. 37 (D.C.Ariz.), aff'd, 400 U.S. 884, 91 S.Ct. 139, 27 L.Ed.2d 129
(1970). See n. 11, infra.
A Florida one-year durational residence requirement for medical care at public
expense was found unconstitutional in Arnold v. Halifax Hospital Dist., 314
F.Supp. 277 (M.D.Fla.1970), and Crapps v. Duval County Hospital Auth., 314
F.Supp. 181 (M.D.Fla.1970).

E.g., Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 173, 92 S.Ct. 1400,
1405, 31 L.Ed.2d 768 (1972); Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct.
995, 999, 31 L.Ed.2d 274 (1972).

394 U.S., at 634, 89 S.Ct., at 1331. See also id., at 642 644, 89 S.Ct., at 1335
1337 (Stewart, J., concurring).

Dunn v. Blumstein, supra; Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322,
22 L.Ed.2d 600 (1969); see Wyman v. Lopez, 404 U.S. 1055, 92 S.Ct. 736, 30
L.Ed.2d 743 (1972); Oregon v. Mitchell, 400 U.S. 112, 237, 91 S.Ct. 260, 321,
27 L.Ed.2d 272 (1970) (separate opinion of Brennan, White, and Marshall, JJ.),
285286, 91 S.Ct. 345 (Stewart, J., concurring and dissenting, with whom

Burger, C.J., and Blackmun, J., joined); Wyman v. Bowens, 397 U.S. 49, 90
S.Ct. 813, 25 L.Ed.2d 38 (1970); United States v. Guest, 383 U.S. 745, 757
759, 86 S.Ct. 1170, 11771179, 16 L.Ed.2d 239 (1966); cf. Griffin v.
Breckenridge, 403 U.S. 88, 105106, 91 S.Ct. 1790, 17991800, 29 L.Ed.2d
338 (1971); Demiragh v. DeVos, 476 F.2d 403 (CA2 1973). See generally Z.
Chafee, Three Human Rights in the Constitution of 1787, pp. 171181, 187 et
seq. (1956).
8

See King v. New Rochelle Municipal Housing Auth., 442 F.2d 646, 648 n. 5
(CA2 1971); Cole v. Housing Authority of City of Newport, 435 F.2d 807, 811
(CA1 1970); Wellford v. Battaglia, 343 F.Supp. 143, 147 (D.C.Del.1972); cf.
Truax v. Raich, 239 U.S. 33, 39, 36 S.Ct. 7, 9, 60 L.Ed. 131 (1915); Note,
Shapiro v. Thompson: Travel, Welfare and the Constitution, 44 N.Y.U.L.Rev.
989, 1012 (1969).

Appellees argue that the County should be able to apply a durational residence
requirement to preserve the quality of services provided its longtime residents
because of their ties to the community and the previous contributions they have
made, particularly through past payment of taxes. It would seem inconsistent to
argue that the residence requirement should be construed to bar long-time
Arizona residents, even if unconstitutional as applied to persons migrating into
Maricopa County from outside the State. Surely, longtime residents of
neighboring counties have more ties with Maricopa County and equity in its
public programs, as through past payment of state taxes, than do migrants from
distant States. This 'contributory' rationale is discussed, infra, at 266.

10

For a discussion of the problems posed by this ambiguity, see Judge Coffin's
perceptive opinion in Cole v. Housing Authority of the City of Newport, 435
F.2d 807 (CA1 1970).

11

In Vaughan v. Bower, 313 F.Supp. 37 (D.C.Ariz.), aff'd, 400 U.S. 884, 91 S.Ct.
139, 27 L.Ed.2d 129 (1970), a federal court struck down an Arizona law
permitting the director of a state mental hospital to return to the State of his
prior residence, any indigent patient who had not been a resident of Arizona for
the year preceding his civil commitment. It is doubtful that the challenged law
could have had any deterrent effect on migration, since few people consider
being committed to a mental hospital when they decide to take up residence in
a new State. See also Affeldt v. Whitcomb, 319 F.Supp. 69 (N.D.Ind.1970),
aff'd, 405 U.S. 1034, 92 S.Ct. 1304, 31 L.Ed.2d 576 (1972).

12

See Vlandis v. Kline, 412 U.S. 441, 452453, n. 9, 93 S.Ct. 2230, 2236
2237, 37 L.Ed.2d 63 (1973).

13

For example, the Shapiro Court cautioned that it meant to 'imply no view of the

validity of waiting-period or residence requirements determining eligibility

(inter alia) to obtain a license to practice a profession, to hunt, or fish, and so
forth.' 394 U.S., at 638, n. 21, 89 S.Ct., at 1333.
14

Dept. of Health, Education, and Welfare (HEW), Report on Medical Resources

Available to Meet the Needs of Public Assistance Recipients, House Committee
on Ways and Means, 86th Cong., 2d Sess., 74 (Comm. Print 1961). Similarly,
President Nixon has observed: "It is health which is real wealth,' said Ghandi,
'and not pieces of gold and silver." Health, Message from the President, 92d
Cong., 1st Sess., H.R.Doc. No. 9249, p. 18 (1971). See also materials cited
at n. 4, supra.

15

Reference to the tuition cases is instructive. The lower courts have contrasted
instate tuition with 'necessities of life' in a way that would clearly include
medical care in the latter category. The District Court in Starns v. Malkerson,
326 F.Supp. 234, 238 (Minn.1970), aff'd, 401 U.S. 985, 91 S.Ct. 1231, 28
L.Ed.2d 527 (1971), quoted with approval from Kirk v. Board of Regents, 273
Cal.App.2d 430, 440, 78 Cal.Rptr. 260, 266267 (1969), appeal dismissed,
396 U.S. 554, 90 S.Ct. 754, 24 L.Ed.2d 744 (1970) (emphasis added):
"While we fully recognize the value of higher education, we cannot equate its
attainment with food, clothing and shelter. Shapiro involved the immediate and
pressing need for preservation of life and health of persons unable to live
without public assistance, and their dependent children. Thus, the residence
requirement in Shapiro could cause great suffering and even loss of life. The
durational residence requirement for attendance at publicly financed institutions
of higher learning (does) not involve similar risks. Nor was petitioner . . .
precluded from the benefit of obtaining higher education. Charging higher
tuition fees to nonresident students cannot be equated with granting of basic
subsistence to one class of needy residents while denying it to an equally needy
class of residents."
See also Note, The Constitutionality of Nonresident Tuition, 55 Minn.L.Rev.
1139, 11491158 (1971). Moreover, in Vlandis, supra, the Court observed
that 'special problems (are) involved in determining the bona fide residence of
college students who come from out of State to attend (a) public university . . .,'
since those students are characteristically transient, 412 U.S., at 452, 93 S.Ct.,
at 2236. There is no such ambiguity about whether appellant Evaro is a bona
fide resident of Maricopa County.

16

108 Ariz. 373, 374, 498 P.2d 461, 462 (emphasis added).

17

See Valenciano v. Bateman, 323 F.Supp. 600, 603 (D.C.Ariz.1971). See

generally HEW Report on Medical Resources, supra, n. 14, at 7374; Dept. of

HEW, Human Investment Programs: Delivery of Health Services for the Poor
(1967).
18

See Dept. of HEW, Hill-Burton Project Register, July 1, 1947June 30, 1967.
HEW Publication No. (HSM) 724011, p. 37. Maricopa County has received
over $2 million in Hill-Burton (42 U.S.C. 291 et seq.) funds since 1947.

19

Medicaid, the primary federal program for providing medical care to indigents
at public expense, does not permit participating States to apply a durational
residence requirement as a condition to eligibility, 42 U.S.C. 1396a(b)(3), and
'this conclusion of a coequal branch of Government is not without significance.'
Frontiero v. Richardson, 411 U.S. 677, 687688, 93 S.Ct. 1764, 1771, 36
L.Ed.2d 583 (1973). The State of Arizona does not participate in the Medicaid
program.

20

Cf. Ely, Legislative and Administrative Motivation in Constitutional Law, 79

Yale L.J. 1205, 12231224 (1970); Note, Developments in the LawEqual
Protection, 82 Harv.L.Rev. 1065, 10761077 (1969).

21

The Arizona Supreme Court observed that because this case involves a
governmental benefit akin to welfare, the 'reasonable basis' test of Dandridge v.
Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), should apply.
In upholding a state regulation placing an absolute limit on the amount of
welfare assistance to be paid a dependent family regardless of size or actual
need, the Court in Dandridge found it 'enough that the State's action be
rationally based and free from invidious discrimination.' Id., at 487, 90 S.Ct., at
1162. The Court later distinguished Dandridge in Graham v. Richardson, 403
U.S. 365, 376, 91 S.Ct. 1848, 1854, 29 L.Ed.2d 534 (1971), where Mr. Justice
Blackmun, writing for the Court, observed that '(a)ppellants' attempted reliance
on Dandridge . . . is also misplaced, since the classification involved in that
case (did not impinge) upon a fundamental constitutional right . . ..' Strict
scrutiny is required here because the challenged classification impinges on the
right of interstate travel. Compare Dandridge, supra, 397 U.S., at 484 n. 16, 90
S.Ct., at 1161, with Shapiro v. Thompson, supra.

22

Shapiro v. Thompson, 394 U.S., at 629, 89 S.Ct., at 1328.

23

See Cantor, The Law and Poor People's Access to Health Care, 35 Law &
Contemp. Prob. 901, 909914 (1970); cf. Catholic Medical Center v.
Rockefeller, 305 F.Supp. 1256 (EDNY 1969), vacated and remanded, 397 U.S.
820, 90 S.Ct. 1517, 25 L.Ed.2d 806, aff'd on remand, 430 F.2d 1297, appeal
dismissed, 400 U.S. 931, 91 S.Ct. 246, 27 L.Ed.2d 262 (1970).

24

HEW Report on Medical Resources, supra, n. 14, at 74. See generally Health,

Message from the President, supra, n. 14; E. Kennedy, In Critical Condition:

The Crises in America's Health Care (1973); Hearings on The Health Care
Crisis in America before the Subcommittee on Health of the Senate Committee
on Labor and Public Welfare, 92d Cong., 1st Sess. (1971).
25

Cantor, supra, n. 23; see E. Kennedy, supra, n. 24, at 78 94; Note, Working
Rules for Assuring Nondiscrimination in Hospital Administration, 74 Yale L.J.
151, 156 n. 32 (1964); cf., e.g., Stanturf v. Sipes, 447 S.W.2d 558 (Mo.1969)
(hospital refused treatment to frostbite victim who was unable to pay $25
deposit). See generally HEW Report on Medical Resources, supra, n. 14, at 74;
Hearings on The Health Care Crisis in America, supra, n. 24.

26

'(L)ack of timely hospitalization and medical care for those unable to pay has
been considered an economic liability to the patient, the hospital, and to the
community in which these citizens might otherwise be self-supporting . . ..'
HEW Report on Medical Resources, supra, n. 14, at 73; Comment, Indigents,
Hospital Admissions and Equal Protection, 5 U.Mich.J.L. Reform 502, 515
516 (1972); cf. Battistella & Southby, Crisis in American Medicine, The Lancet
581, 582 (Mar. 16, 1968).

27

See Green v. Dept. of Public Welfare of Delaware, 270 F.Supp. 173, 177178
(D.C.Del.1967).

28

Ariz.Rev.Stat.Ann. 46292(1) (Supp.19731974).

29

46261.02(3) (Supp.19731974).

30

In addition, Pima County, Arizona, did not apply the durational residence
requirement between August 1969, when the requirement was found
unconstitutional by the Arizona Court of Appeals, Board of Supervisors, Pima
County v. Robinson, 10 Ariz.App. 238, 457 P.2d 951, and September 1970,
when that judgment was vacated as moot by the Arizona Supreme Court, 105
Ariz. 280, 463 P.2d 536.

See appendix to this opinion, post, p. 274.

Title 42 CFR 53.111(b)(8) defines that term to mean 'a level of

uncompensated services which meets a need for such services in the area served
by an applicant and which is within the financial ability of such applicant to
provide.'

The waiver of such a requirement requires notice and opportunity for public
hearing. 42 CFR 53.111(c)(2).

For the impact of 'free' indigent care on private hospitals and their paying
patients see Dept. of Health, Education and Welfare (HEW) Report on Medical
Resources Available to Meet the Needs of Public Assistance Recipients, House
Committee on Ways and Means, 86th Cong., 2d Sess. (Comm.Print 1961).

Foreword to an article on Medical Care and its Delivery: An Economic

Appraisal by Judith R. Lave and Lester B. Lave in 35 Law & Contemp.Prob.
252 (1970).

Ariz.Rev.Stat.Ann. 11297A (Supp.19731974) reads as follows:

'Except in emergency cases when immediate hospitalization or medical care is
necessary for the preservation of life or limb no person shall be provided
hospitalization, medical care or outpatient relief under the provisions of this
article without first filing with a member of the board of supervisors of the
county in which he resides a statement in writing, subscribed and sworn to
under oath, that he is an indigent, as shall be defined by rules and regulations of
the state department of economic security, an unemployable totally dependent
upon the state or county government for financial support, or an employable of
sworn low income without sufficient funds to provide himself necessary
hospitalization and medical care, and that he has been a resident of the county
for the preceding twelve menths.'

The parties stipulated that Mr. Evaro was 'an indigent who recently changed his
residence from New Mexico to Arizona and who has resided in the state of
Arizona for less than twelve months.' App. 10. Therefore Mr. Evaro failed to
meet only the third requirement discussed in the text.

This Court has noted that citizens have no constitutional right to welfare
benefits. See, e.g., Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25
L.Ed.2d 491 (1970); San Antonio Independent School Dist. v. Rodriguez, 411
U.S. 1, 33, 93 S.Ct. 1278, 1296, 36 L.Ed.2d 16 (1973).

Although the right to travel has been recognized by this Court for over a
century, the origin of the right still remains somewhat obscure. The majority
opinion in this case makes no effort to identify the source, simply relying on
recent cases which state such a right exists.

The tax levied by the State of Nevada was upon every person leaving the State.
As this Court has since noted, the tax was a direct tax on travel and was not
intended to be a charge for the use of state facilities. See EvansvilleVanderburgh Airport Authority District v. Delta Airlines, Inc., 405 U.S. 707, 92
S.Ct. 1349, 31 L.Ed.2d 620 (1972).

The Court also rejected an equal protection argument, concluding: 'We are
unable to say that such a discrimination, if it existed, did not rest on reasonable
grounds, and was not within the discretion of the state legislature.' 179 U.S., at
276, 21 S.Ct., at 130.

See the concurring opinions of Mr. Justice Douglas (with whom Mr. Justice
Black and Mr. Justice Murphy joined), 314 U.S., at 177, 62 S.Ct., at 168, and
Mr. Justice Jackson, id., at 181, 62 S.Ct., at 170.

The Court in Edwards observed: 'After arriving in California (the indigent) was
aided by the Farm Security Administration, which . . . is wholly financed by the
Federal government.' 314 U.S., at 175, 62 S.Ct., at 168. The Court did not
express a view at that time as to whether a different result would have been
reached if the State bore the financial burden. But cf. Shapiro v. Thompson,
394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

See Ariz.Rev.Stat.Ann. 46233 (Supp.19731974), which provides that an

eligible recipient of general assistance must have 'established residence at the
time of application.'

10

See Starns v. Malkerson, 326 F.Supp. 234 (D.C.Minn.1970), aff'd, 401 U.S.
985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971); Vlandis v. Kline, 412 U.S. 441, 93
S.Ct. 2230, 37 L.Ed.2d 63 (1973).

11

See, e.g., Interstate Busses Corp. v. Blodgett, 276 U.S. 245, 48 S.Ct. 230, 72
L.Ed. 551 (1928); Hendrick v. Maryland, 235 U.S. 610, 35 S.Ct. 140, 59 L.Ed.
385 (1915).

12

See Evansville-Vanderburgh Airport Authority District v. Delta Airlines, 405

U.S. 707, 92 S.Ct. 1349, 31 L.Ed.2d 620 (1972).

13

See, e.g., Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370
(1970); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d
647 (1969).

14

In Vlandis, while striking down a Connecticut statute that in effect prevented a

new state resident from obtaining lower tuition rates for the full period of
enrollment, we stated that the decision should not 'be construed to deny a State
the right to impose on a student, as one element in demonstrating bona fide
residence, a reasonable durational residency requirement, which can be met
while in student status.' 412 U.S., at 452, 93 S.Ct., at 2236. Starns was cited as
support for this position.

15

This distinction may be particularly important in a State such as Arizona where

the Constitution provides for limitations on state and county debt. See
Ariz.Const., Art. 9, 5 (State); Art. 9, 8 (County). See generally Comment,
Dulling the Edge of Husbandry: The Special Fund Doctrine in Arizona, 1971
L. & Soc.O. (Ariz.St.L.J.) 555.
16

The appellees in this case filed an affidavit indicating that acceptance of

appellants' position would impose an added burden on property taxpayers in
Maricopa County of over.$2.5 million in the first year alone. App. 1217.